UPDATE: Appeals Court Says Google & NSA Can Stay Mum About Alleged Relationship

(Photo credit: Wikipedia)

Agreeing with a lower court ruling last year (see "TUOL" post 7/19/11), the United States Circuit Court of Appeals for the D.C. Circuit last week ruled the National Security Agency need not respond to a Freedom of Information Act request [5 U.S.C. sec. 552 et seq.] regarding an agreement that the NSA may or may not have forged with Google.

The decision in Electronic Privacy Information Center v. National Security Agency (Case No. 11-5233) said the NSA need not respond at all to the FOIA request by EPIC, a public interest watchdog group, as even a refusal to comply could provide information about a possible relationship between NSA and Google.  In the parlance of the security arena, to neither confirm nor deny the existence of requested documents is a so-called Glomar response, named after a past case involving a journalist's efforts to obtain data from the CIA about an underwater vessel.

The appellate court ruled the NSA could properly invoke Exemption No. 1 of the nine FOIA exemptions, which allows a government agency to withhold: "Those documents properly classified as secret in the interest of national defense or foreign policy."

No word as yet about whether EPIC plans to appeal to the U.S. Supreme Court.

NSA Deflects FOIA Challenge About Possible Google Ties

Image via WikipediaWhether the National Security Agency has forged a relationship with Internet search engine colossus Google will remain under wraps for now as the NSA successfully rebuffed a document request by public interest watchdog group, the Electronic Privacy Information Center ("EPIC") under the Freedom of Information Act [5 U.S.C. sec. 552 et seq.].

As reported by Suits & Sentences, a blog published by The McClatchy Co. media conglomerate, U.S. District Court for the District of Columbia Judge Richard J. Leon denied EPIC's FOIA document request, relying on Exemption 3 of the sunshine law. The restriction holds that material does not have to be produced that is otherwise protected from disclosure by another statute; in this case, one that guards "the organization or any function of the National Security Agency, [or] any information with respect to the activities thereof," the Suits & Sentences post noted.

The NSA ain't talkin' about whether it has worked with Google.  EPIC initially filed its FOIA request after stories emerged concerning a possible connection between the NSA and Google regarding a cyber attack by hackers in China.

The case is Electronic Privacy Information Center v. National Security Agency (Case No. 1:2010-cv-01533).